{"id":41339,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/subsidiary-guaranty-under-credit-agreement-dutch-subsidiaries.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"subsidiary-guaranty-under-credit-agreement-dutch-subsidiaries","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/subsidiary-guaranty-under-credit-agreement-dutch-subsidiaries.html","title":{"rendered":"Subsidiary Guaranty – Under Credit Agreement – Dutch Subsidiaries of TIBCO Software Inc."},"content":{"rendered":"

SUBSIDIARY GUARANTY <\/strong><\/p>\n

(Netherlands) <\/strong><\/p>\n

This SUBSIDIARY GUARANTY (Netherlands), dated as of December 19, 2011 (as
\namended, restated, extended, supplemented or otherwise modified from time to
\ntime, this “Subsidiary Guaranty<\/u>“), is made by each Subsidiary of TIBCO
\nSOFTWARE INC., a Delaware corporation (the “Company<\/u>“), from time to time
\nparty hereto as set forth on Schedule I<\/u> attached hereto (each
\nindividually, a “Guarantor<\/u>” and, collectively, the “Guarantors<\/u>“),
\nin favor of BANK OF AMERICA, N.A., as administrative agent (together with its
\nsuccessor(s) thereto in such capacity, the “Administrative Agent<\/u>“) for
\neach of the Lenders and the L\/C Issuer (together with the Administrative Agent,
\ncollectively, the “Lender Parties<\/u>“).<\/p>\n

W<\/u> I<\/u> T<\/u> N<\/u> E<\/u> S<\/u> S<\/u>
\nE<\/u> T<\/u> H<\/u>:<\/p>\n

WHEREAS, pursuant to an Amended and Restated Credit Agreement, dated as of
\nDecember 19, 2011 (as amended, restated, extended, supplemented or otherwise
\nmodified from time to time, the “Credit Agreement<\/u>“), among the Company,
\nthe Designated Borrowers party thereto, the Lenders and the Administrative
\nAgent, the Lenders and the L\/C Issuer have extended Commitments to make Credit
\nExtensions to the Borrowers; and<\/p>\n

WHEREAS, as a condition precedent to the making of the Credit Extensions
\nunder the Credit Agreement, each Guarantor is required to execute and deliver
\nthis Subsidiary Guaranty.<\/p>\n

NOW, THEREFORE, for good and valuable consideration the receipt of which is
\nhereby acknowledged, and in order to induce the Lenders and the L\/C Issuer to
\nmake Credit Extensions to the Borrowers, each Guarantor jointly and severally
\nagrees, for the benefit of each of the Lender Parties, as follows:<\/p>\n

ARTICLE I<\/p>\n

DEFINITIONS<\/p>\n

SECTION 1.1. Certain Terms<\/u>. The following terms when used in this
\nSubsidiary Guaranty, including its preamble and recitals, shall have the
\nfollowing meanings (such definitions to be equally applicable to the singular
\nand plural forms thereof):<\/p>\n

“Administrative Agent<\/u>” is defined in the preamble<\/u>.<\/p>\n

“Company<\/u>” is defined in the preamble<\/u>.<\/p>\n

“Credit Agreement<\/u>” is defined in the first recital<\/u>.<\/p>\n

“Guaranteed Obligations<\/u>” is defined in Section 2.1(a)<\/u>.<\/p>\n

“Guarantor<\/u>” and “Guarantors<\/u>” are defined in the
\npreamble<\/u>.<\/p>\n

“Lender Parties<\/u>” is defined in the preamble<\/u>.<\/p>\n

“Subsidiary Guaranty<\/u>” is defined in the preamble<\/u>.<\/p>\n

\n

“Termination Date<\/u>” means the date on which all Obligations (other than
\ncontingent indemnity obligations in respect of which no claim has been asserted
\nor any Obligations under any Covered Cash Management Agreement or Covered Hedge
\nAgreement) have been paid in full in cash, all Letters of Credit have been
\nterminated or have expired (or have been Cash Collateralized), and all
\nCommitments shall have been terminated.<\/p>\n

SECTION 1.2. Credit Agreement Definitions<\/u>. Unless otherwise defined
\nherein or the context otherwise requires, terms used in this Subsidiary
\nGuaranty, including its preamble and recitals, have the meanings provided in the
\nCredit Agreement.<\/p>\n

ARTICLE II<\/p>\n

GUARANTY PROVISIONS<\/p>\n

SECTION 2.1. Subsidiary Guaranty<\/u>. Each Guarantor hereby jointly and
\nseverally absolutely, unconditionally and irrevocably:<\/p>\n

(a) guarantees the full and punctual payment when due, whether at stated
\nmaturity, by required prepayment, declaration, acceleration, demand or
\notherwise, of all Obligations each Designated Borrower set forth on Schedule
\nII<\/u> attached hereto (collectively, the “Guaranteed Obligations<\/u>“) now
\nor hereafter existing, whether for principal, interest (including interest
\naccruing at the then Applicable Rate provided in the Credit Agreement after the
\noccurrence of any Default set forth in Section 8.01(f) or (g) of the Credit
\nAgreement, whether or not a claim for post-filing or post-petition interest is
\nallowed under applicable Law following the institution of a proceeding under
\nbankruptcy, insolvency or similar Laws), fees, reimbursement obligations with
\nrespect to the Letters of Credit or otherwise, expenses or otherwise (including
\nall such amounts which would become due but for the operation of the automatic
\nstay under Section 362(a) of the United States Bankruptcy Code, 11 U.S.C.
\n \u00a7362(a), and the operation of Sections 502(b) and 506(b) of the United States
\nBankruptcy Code, 11 U.S.C. \u00a7502(b) and \u00a7506(b)); and<\/p>\n

(b) indemnifies and holds harmless each Lender Party for any and all costs
\nand expenses (including reasonable attorney153s fees and expenses) incurred by
\nsuch Lender Party in enforcing any rights under this Subsidiary Guaranty.<\/p>\n

provided<\/u> that (i) each Guarantor shall only be liable under this
\nSubsidiary Guaranty for the maximum amount of such liability that can be hereby
\nincurred without rendering this Subsidiary Guaranty, as it relates to such
\nGuarantor, voidable under applicable Law relating to fraudulent conveyance,
\nfraudulent transfer, or financial assistance laws (including article 2:207C of
\nthe Dutch Civil Code), and not for any greater amount and (ii) in no event shall
\nany Guarantor that is a Foreign Subsidiary be liable for any Obligations of any
\nBorrower other than a Foreign Obligor. This Subsidiary Guaranty constitutes a
\nguaranty of payment when due and not of collection, and each Guarantor
\nspecifically agrees that it shall not be necessary or required that any Lender
\nParty exercise any right, assert any claim or demand or enforce any remedy
\nwhatsoever against any Loan Party or any other Person before or as a condition
\nto the obligations of such Guarantor hereunder.<\/p>\n

2<\/p>\n

\n

SECTION 2.2. Payments Set Aside<\/u>. To the extent that any payment by or
\non behalf of any Guarantor is made to any Lender Party, or any Lender Party
\nexercises its right of setoff, and such payment or the proceeds of such setoff
\nor any part thereof is subsequently invalidated, declared to be fraudulent or
\npreferential, set aside or required (including pursuant to any settlement
\nentered into by such Lender Party in its discretion) to be repaid to a trustee,
\nreceiver or any other party, in connection with any proceeding under any Debtor
\nRelief Law or otherwise, then to the extent of such recovery, the obligation or
\npart thereof originally intended to be satisfied shall be revived and continued
\nin full force and effect as if such payment had not been made or such setoff had
\nnot occurred.<\/p>\n

SECTION 2.3. Guaranty Absolute, etc<\/u>. This Subsidiary Guaranty shall in
\nall respects be a continuing, absolute, unconditional and irrevocable guaranty
\nof payment, and shall remain in full force and effect until the Termination Date
\nhas occurred. Each Guarantor severally guarantees that the Guaranteed
\nObligations will be paid strictly in accordance with the terms of each Loan
\nDocument under which they arise, regardless of any Law, regulation or order now
\nor hereafter in effect in any jurisdiction affecting any of such terms or the
\nrights of any Lender Party with respect thereto. The liability under this
\nSubsidiary Guaranty of (i) each Guarantor that is a Domestic Subsidiary shall be
\njoint and several, and (ii) each Guarantor that is a Foreign Subsidiary shall be
\nseveral only, and in each case shall be absolute, unconditional and irrevocable
\nirrespective of:<\/p>\n

(a) any lack of validity, legality or enforceability of any Loan Document;\n<\/p>\n

(b) the failure of any Lender Party:<\/p>\n

(i) to assert any claim or demand or to enforce any right or remedy against
\nany Loan Party or any other Person (including any other guarantor) under the
\nprovisions of any Loan Document or otherwise, or<\/p>\n

(ii) to exercise any right or remedy against any other guarantor (including
\nany Borrower or any other Guarantor) of, or collateral (if any) securing, any
\nGuaranteed Obligation;<\/p>\n

(c) any change in the time, manner or place of payment of, or in any other
\nterm of, all or any part of the Guaranteed Obligations, or any other extension,
\ncompromise or renewal of any Obligation;<\/p>\n

(d) any reduction, limitation, impairment or termination of any Guaranteed
\nObligation for any reason, including any claim of waiver, release, surrender,
\nalteration or compromise, and shall not be subject to (and each Guarantor hereby
\nwaives any right to or claim of) any defense or setoff, counterclaim, recoupment
\nor termination whatsoever by reason of the invalidity, illegality,
\nnongenuineness, irregularity, compromise, unenforceability of, or any other
\nevent or occurrence affecting, any Guaranteed Obligation or otherwise;<\/p>\n

(e) any amendment to, rescission, waiver, or other modification of, or any
\nconsent to or departure from, any of the terms of any Loan Document;<\/p>\n

3<\/p>\n

\n

(f) any addition, exchange or release of any collateral (if any) or of any
\nPerson that is (or will become) a guarantor (including a Guarantor hereunder) of
\nthe Guaranteed Obligations, or any surrender or non perfection of any
\ncollateral, or any amendment to or waiver or release or addition to, or consent
\nto or departure from, any other guaranty held by any Lender Party securing any
\nof the Guaranteed Obligations; or<\/p>\n

(g) any other circumstance which might otherwise constitute a defense
\navailable to, or a legal or equitable discharge of, any Loan Party, any surety
\nor any guarantor.<\/p>\n

SECTION 2.4. Setoff<\/u>. If an Event of Default shall have occurred and be
\ncontinuing, each Lender, the L\/C Issuer and each of their respective Affiliates
\nis hereby authorized at any time and from time to time, after obtaining the
\nprior written consent of the Administrative Agent, to the fullest extent
\npermitted by applicable Law, to set off and apply any and all deposits (general
\nor special, time or demand, provisional or final, in whatever currency) at any
\ntime held and other obligations (in whatever currency) at any time owing by such
\nLender, the L\/C Issuer or any such Affiliate to or for the credit or the account
\nof any Guarantor against any and all of the obligations of such Guarantor now or
\nhereafter existing under this Subsidiary Guaranty or any other Loan Document to
\nsuch Lender or the L\/C Issuer, irrespective of whether or not such Lender or the
\nL\/C Issuer shall have made any demand under this Subsidiary Guaranty or any
\nother Loan Document and although such obligations of such Guarantor may be
\ncontingent or unmatured or are owed to a branch or office of such Lender or the
\nL\/C Issuer different from the branch or office holding such deposit or obligated
\non such indebtedness. The rights of each Lender, the L\/C Issuer and their
\nrespective Affiliates under this Section 2.4<\/u> are in addition to other
\nrights and remedies (including other rights of setoff) that such Lender, the L\/C
\nIssuer or their respective Affiliates may have. Each Lender and the L\/C Issuer
\nagrees to notify the Company and the Administrative Agent promptly after any
\nsuch setoff and application; provided<\/u> that the failure to give such
\nnotice shall not affect the validity of such setoff and application.<\/p>\n

SECTION 2.5. Waiver, etc<\/u>. Each Guarantor hereby waives promptness,
\ndiligence, notice of acceptance and any other notice with respect to any of the
\nGuaranteed Obligations and this Subsidiary Guaranty and any requirement that any
\nLender Party protect, secure, perfect or insure any Lien, or any property
\nsubject thereto, or exhaust any right or take any action against any Loan Party
\nor any other Person (including any other guarantor) or entity or any collateral
\nsecuring the Guaranteed Obligations, as the case may be.<\/p>\n

SECTION 2.6. Postponement of Subrogation, etc<\/u>. Each Guarantor agrees
\nthat it will not exercise any rights which it may acquire by way of rights of
\nsubrogation under any Loan Document to which it is a party, nor shall any
\nGuarantor seek or be entitled to seek any contribution or reimbursement from any
\nLoan Party, in respect of any payment made under any Loan Document or otherwise,
\nuntil following the Termination Date. Any amount paid to any Guarantor on
\naccount of any such subrogation rights prior to the Termination Date shall be
\nheld in trust for the benefit of the Lender Parties and shall immediately be
\npaid and turned over to the Administrative Agent for the benefit of the Lender
\nParties in the exact form received by such Guarantor (duly endorsed in favor of
\nthe Administrative Agent, if required), to be credited and applied against the
\nGuaranteed Obligations, whether matured or unmatured, in accordance with
\nSection 2.7<\/u>; provided<\/u> that if any Guarantor has made payment to
\nany Lender Party of all or any<\/p>\n

4<\/p>\n

\n

part of the Guaranteed Obligations and the Termination Date has occurred,
\nthen at such Guarantor153s request, the Administrative Agent (on behalf of the
\nLender Parties) will, at the expense of such Guarantor, execute and deliver to
\nsuch Guarantor appropriate documents (without recourse and without
\nrepresentation or warranty) necessary to evidence the transfer by subrogation to
\nsuch Guarantor of an interest in the Guaranteed Obligations resulting from such
\npayment. In furtherance of the foregoing, at all times prior to the Termination
\nDate, each Guarantor shall refrain from taking any action or commencing any
\nproceeding against any Loan Party (or its successors or assigns, whether in
\nconnection with a bankruptcy proceeding or otherwise) to recover any amounts in
\nrespect of payments made under this Subsidiary Guaranty to any of the Lender
\nParties.<\/p>\n

SECTION 2.7. Payments; Application<\/u>. Each Guarantor hereby agrees with
\neach Lender Party as follows:<\/p>\n

(a) All payments made by such Guarantor hereunder will be made in Dollars or
\nother applicable Alternative Currency to the Administrative Agent, without
\nsetoff, counterclaim or other defense and in accordance with Sections 3.01 and
\n8.03 of the Credit Agreement, free and clear of and without deduction for any
\nTaxes, each Guarantor hereby agreeing to comply with and be bound by the
\nprovisions of Sections 3.01 and 8.03 of the Credit Agreement in respect of all
\npayments made by it hereunder and the provisions of which Sections are hereby
\nincorporated into and made a part of this Subsidiary Guaranty by this reference
\nas if set forth herein; provided<\/u> that references to the “Borrower” in
\nsuch Sections shall be deemed to be references to each Guarantor, and references
\nto “this Agreement” in such Sections shall be deemed to be references to this
\nSubsidiary Guaranty.<\/p>\n

(b) All payments made hereunder shall be applied upon receipt as set forth in
\nSection 8.03 of the Credit Agreement.<\/p>\n

ARTICLE III<\/p>\n

REPRESENTATIONS AND WARRANTIES<\/p>\n

In order to induce the Lender Parties to enter into the Credit Agreement and
\nmake Credit Extensions thereunder, each Guarantor represents and warrants to
\neach Lender Party as set forth below.<\/p>\n

SECTION 3.1. Credit Agreement Representations and Warranties<\/u>. The
\nrepresentations and warranties contained in Article V of the Credit Agreement,
\ninsofar as the representations and warranties contained therein are applicable
\nto any Guarantor and its properties, are true and correct in all material
\nrespects, each such representation and warranty set forth in such Article
\n(insofar as applicable as aforesaid) and all other terms of the Credit Agreement
\nto which reference is made therein, together with all related definitions and
\nancillary provisions, being hereby incorporated into this Subsidiary Guaranty by
\nreference as though specifically set forth in this Article.<\/p>\n

5<\/p>\n

\n

SECTION 3.2. Financial Condition, etc<\/u>. Each Guarantor has knowledge of
\neach other Loan Party153s financial condition and affairs and has adequate means
\nto obtain from each such Loan Party on an ongoing basis information relating
\nthereto and to such Loan Party153s ability to pay and perform the Guaranteed
\nObligations, and agrees to assume the responsibility for keeping, and to keep,
\nso informed for so long as this Subsidiary Guaranty is in effect. Each Guarantor
\nacknowledges and agrees that the Lender Parties shall have no obligation to
\ninvestigate the financial condition or affairs of any Loan Party for the benefit
\nof such Guarantor nor to advise such Guarantor of any fact respecting, or any
\nchange in, the financial condition or affairs of any other Loan Party that might
\nbecome known to any Lender Party at any time, whether or not such Lender Party
\nknows or believes or has reason to know or believe that any such fact or change
\nis unknown to such Guarantor, or might (or does) materially increase the risk of
\nsuch Guarantor as guarantor, or might (or would) affect the willingness of such
\nGuarantor to continue as a guarantor of the Guaranteed Obligations.<\/p>\n

SECTION 3.3. Best Interests<\/u>. It is in the best interests of each
\nGuarantor to execute this Subsidiary Guaranty inasmuch as such Guarantor will,
\nas a result of being a Subsidiary of the applicable Borrower, derive substantial
\ndirect and indirect benefits from the Credit Extensions made from time to time
\nto such Borrower by the Lenders and the L\/C Issuer pursuant to the Credit
\nAgreement, and each Guarantor agrees that the Lender Parties are relying on this
\nrepresentation in agreeing to make Credit Extensions to the Borrowers.<\/p>\n

ARTICLE IV<\/p>\n

COVENANTS, ETC.<\/p>\n

Each Guarantor covenants and agrees that, at all times prior to the
\nTermination Date, it will perform, comply with and be bound by all of the
\nagreements, covenants and obligations contained in the Credit Agreement
\n(including Articles VI and VII and Section 8.01(f) and (g) of the Credit
\nAgreement) which are applicable to such Guarantor or its properties, each such
\nagreement, covenant and obligation contained in the Credit Agreement and all
\nother terms of the Credit Agreement to which reference is made in this Article,
\ntogether with all related definitions and ancillary provisions, being hereby
\nincorporated into this Subsidiary Guaranty by this reference as though
\nspecifically set forth in this Article.<\/p>\n

ARTICLE V<\/p>\n

MISCELLANEOUS PROVISIONS<\/p>\n

SECTION 5.1. Loan Document<\/u>. This Subsidiary Guaranty is a Loan
\nDocument executed pursuant to the Credit Agreement and shall (unless otherwise
\nexpressly indicated herein) be construed, administered and applied in accordance
\nwith the terms and provisions thereof, including Article X thereof. To the
\nextent of any conflict between the terms contained in this Subsidiary Guaranty
\nand the terms contained in the Credit Agreement, the terms of the Credit
\nAgreement shall control.<\/p>\n

6<\/p>\n

\n

SECTION 5.2. Binding on Successors, Transferees and Assigns;
\nAssignment<\/u>. This Subsidiary Guaranty shall remain in full force and effect
\nuntil the Termination Date has occurred, shall be jointly and severally binding
\nupon each Guarantor and its successors, transferees and assigns and shall inure
\nto the benefit of and be enforceable by each Lender Party and its successors,
\ntransferees and assigns; provided<\/u> that no Guarantor may (unless otherwise
\npermitted under the terms of the Credit Agreement) assign any of its obligations
\nhereunder without the prior written consent of all Lenders.<\/p>\n

SECTION 5.3. Amendments, etc<\/u>. No amendment to or waiver of any
\nprovision of this Subsidiary Guaranty, nor consent to any departure by any
\nGuarantor from its obligations under this Subsidiary Guaranty, shall in any
\nevent be effective unless the same shall be in writing and signed by the
\nGuarantors and the Administrative Agent (on behalf of the Lenders or the
\nRequired Lenders, as the case may be, pursuant to Section 10.01 of the Credit
\nAgreement) and then such waiver or consent shall be effective only in the
\nspecific instance and for the specific purpose for which given.<\/p>\n

SECTION 5.4. Notices<\/u>. All notices and other communications provided
\nfor hereunder shall be in writing or by facsimile or via other electronic means
\nand addressed, delivered or transmitted to the appropriate party at the address
\nor facsimile number or e-mail address of such party (in the case of any
\nGuarantor, in care of the Company) specified in the Credit Agreement or at such
\nother address or facsimile number or e-mail address as may be designated by such
\nparty in a notice to the other party. Any notice, if mailed and properly
\naddressed with postage prepaid or if properly addressed and sent by pre-paid
\ncourier service, shall be deemed given when received; any such notice, if
\ntransmitted by facsimile or via other electronic means, shall be deemed given
\nwhen the confirmation of transmission thereof is received by the transmitter.\n<\/p>\n

SECTION 5.5. Additional Guarantors<\/u>. Upon the execution and delivery by
\nany other Person of a supplement in the form of Annex I<\/u> hereto, such
\nPerson shall become a “Guarantor” hereunder with the same force and effect as if
\nit were originally a party to this Subsidiary Guaranty and named as a
\n“Guarantor” hereunder. The execution and delivery of such supplement shall not
\nrequire the consent of any other Guarantor hereunder, and the rights and
\nobligations of each Guarantor hereunder shall remain in full force and effect
\nnotwithstanding the addition of any new Guarantor as a party to this Subsidiary
\nGuaranty.<\/p>\n

SECTION 5.6. Release of Guarantor<\/u>. Upon the occurrence of the
\nTermination Date, this Subsidiary Guaranty and all obligations of each Guarantor
\nhereunder shall terminate, without delivery of any instrument or performance of
\nany act by any party. In addition, at the request of the Company, and at the
\nsole expense of the Company, a Guarantor shall be released from its obligations
\nhereunder in the event that (i) such Guarantor ceases to be a Material
\nSubsidiary pursuant to Section 9.10 of the Credit Agreement or (ii) such
\nGuarantor merges with the Company or another Loan Party pursuant to the terms of
\nthe Credit Agreement, or all or substantially all of the assets of such
\nGuarantor or the Equity Interests of such Guarantor are Disposed of in a
\ntransaction permitted by the Credit Agreement; provided<\/u> that the Company
\nshall have delivered to the Administrative Agent, at least three (3) Business
\nDays prior to the date of the proposed release or at such other time as the
\nAdministrative Agent shall reasonably require, a written request for release
\nidentifying the relevant Guarantor and a certification by the Company stating
\nthat such transaction is in compliance with the Loan Documents.<\/p>\n

7<\/p>\n

\n

SECTION 5.7. No Waiver; Remedies<\/u>. In addition to, and not in
\nlimitation of, Sections 2.3<\/u> and 2.5<\/u> hereof, no failure on the part
\nof any Lender Party to exercise, and no delay in exercising, any right hereunder
\nshall operate as a waiver thereof, nor shall any single or partial exercise of
\nany right hereunder preclude any other or further exercise thereof or the
\nexercise of any other right. The remedies herein provided are cumulative and not
\nexclusive of any remedies provided by Law.<\/p>\n

SECTION 5.8. Section Captions<\/u>. Section captions used in this
\nSubsidiary Guaranty are for convenience of reference only, and shall not affect
\nthe construction of this Subsidiary Guaranty.<\/p>\n

SECTION 5.9. Severability<\/u>. If any provision of this Subsidiary
\nGuaranty or the other Loan Documents is held to be illegal, invalid or
\nunenforceable, (a) the legality, validity and enforceability of the remaining
\nprovisions of this Subsidiary Guaranty and the other Loan Documents shall not be
\naffected or impaired thereby and (b) the parties shall endeavor in good faith
\nnegotiations to replace the illegal, invalid or unenforceable provisions with
\nvalid provisions the economic effect of which comes as close as possible to that
\nof the illegal, invalid or unenforceable provisions. The invalidity of a
\nprovision in a particular jurisdiction shall not invalidate or render
\nunenforceable such provision in any other jurisdiction.<\/p>\n

SECTION 5.10. Governing Law; Jurisdiction; Etc.<\/u> (a) GOVERNING
\nLAW<\/u>. THIS SUBSIDIARY GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN
\nACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.<\/p>\n

(b) SUBMISSION TO JURISDICTION<\/u>. EACH GUARANTOR IRREVOCABLY AND
\nUNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
\nJURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY
\nAND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK,
\nAND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING
\nOUT OF OR RELATING TO THIS SUBSIDIARY GUARANTY OR ANY OTHER LOAN DOCUMENT, OR
\nFOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
\nIRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
\nACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT
\nOR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.
\nEACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
\nPROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
\nSUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
\nSUBSIDIARY GUARANTY OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT
\nTHE ADMINISTRATIVE AGENT, ANY LENDER, THE L\/C ISSUER OR ANY OTHER LENDER PARTY
\nMAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS SUBSIDIARY
\nGUARANTY OR ANY OTHER LOAN DOCUMENT AGAINST ANY GUARANTOR OR ITS PROPERTIES IN
\nTHE COURTS OF ANY JURISDICTION.<\/p>\n

8<\/p>\n

\n

(c) WAIVER OF VENUE<\/u>. EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY
\nWAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT
\nMAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING
\nARISING OUT OF OR RELATING TO THIS SUBSIDIARY GUARANTY OR ANY OTHER LOAN
\nDOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE
\nPARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
\nAPPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH
\nACTION OR PROCEEDING IN ANY SUCH COURT.<\/p>\n

SECTION 5.11. Waiver of Jury Trial<\/u>. EACH PARTY HERETO HEREBY
\nIRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
\nIT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
\nARISING OUT OF OR RELATING TO THIS SUBSIDIARY GUARANTY OR ANY OTHER LOAN
\nDOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
\nCONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
\nREPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY
\nOR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
\nTO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
\nPARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS SUBSIDIARY GUARANTY AND THE
\nOTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
\nCERTIFICATIONS IN THIS SECTION.<\/p>\n

SECTION 5.12. Counterparts<\/u>. This Subsidiary Guaranty may be executed
\nby the parties hereto in several counterparts, each of which shall be deemed to
\nbe an original and all of which shall constitute together but one and the same
\nagreement. Delivery of an executed counterpart of a signature page to this
\nSubsidiary Guaranty by facsimile or via other electronic means shall be
\neffective as delivery of a manually executed counterpart of this Subsidiary
\nGuaranty.<\/p>\n

SECTION 5.13. ENTIRE AGREEMENT<\/u>. THIS SUBSIDIARY GUARANTY AND THE OTHER
\nLOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE
\nCONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
\nAGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
\nPARTIES.<\/p>\n

9<\/p>\n

\n

IN WITNESS WHEREOF, each Guarantor has caused this Subsidiary Guaranty to be
\nduly executed and delivered by its Responsible Officer as of the date first
\nabove written.<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Signed for and on behalf of TIBCO SOFTWARE<\/strong><\/p>\n

B.V.,<\/strong> acting by Intertrust (Netherlands) B.V.<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ P.M. Blote<\/p>\n<\/td>\n<\/tr>\n

\n

Name:<\/p>\n<\/td>\n

<\/td>\n\n

P.M. Blote<\/p>\n<\/td>\n<\/tr>\n

\n

Title:<\/p>\n<\/td>\n

<\/td>\n\n

Proxyholder<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n
\n

Signed for and on behalf of TIBCO SOFTWARE<\/strong><\/p>\n

B.V.,<\/strong> acting by Intertrust (Netherlands) B.V.<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ J.E. Hardeveld<\/p>\n<\/td>\n<\/tr>\n

\n

Name:<\/p>\n<\/td>\n

<\/td>\n\n

J.E. Hardeveld<\/p>\n<\/td>\n<\/tr>\n

\n

Title:<\/p>\n<\/td>\n

<\/td>\n\n

Proxyholder<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

ACCEPTED AND AGREED FOR ITSELF<\/p>\n<\/td>\n<\/tr>\n

\n

AND ON BEHALF OF THE LENDER PARTIES:<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n
\n

BANK OF AMERICA, N.A.,<\/p>\n

as Administrative Agent<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ Jeffrey P. Mills<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Name: Jeffrey P. Mills<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Title: Assistant Vice President<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

\n

SCHEDULE I to<\/p>\n

the Subsidiary Guaranty<\/p>\n

Subsidiary Guarantors<\/p>\n

TIBCO Software B.V., a private limited liability company organized under the
\nlaws of the Netherlands<\/p>\n

\n

SCHEDULE II to<\/p>\n

the Subsidiary Guaranty<\/p>\n

Designated Borrowers<\/p>\n

TIBCO International Holdings B.V., a private limited liability company
\norganized under the laws of the Netherlands<\/p>\n

\n

ANNEX I to<\/p>\n

the Subsidiary Guaranty (Netherlands)<\/p>\n

THIS SUPPLEMENT, dated as of , 20 (this “Supplement<\/u>“), is to the
\nSubsidiary Guaranty (Netherlands), dated as of December 19, 2011 (as amended,
\nrestated, extended, supplemented or otherwise modified from time to time, the
\n“Subsidiary Guaranty<\/u>“), among the Guarantors (such capitalized term, and
\nother terms used in this Supplement, to have the meanings set forth in Article I
\nof the Subsidiary Guaranty) from time to time party thereto, in favor of BANK OF
\nAMERICA, N.A., as administrative agent (together with its successor(s) thereto
\nin such capacity, the “Administrative Agent<\/u>“) for each of the Lender
\nParties.<\/p>\n

W I T N E S S E T H :<\/p>\n

WHEREAS, pursuant to the provisions of Section 5.5 of the Subsidiary
\nGuaranty, each of the undersigned is becoming a Guarantor under the Subsidiary
\nGuaranty; and<\/p>\n

WHEREAS, each of the undersigned desires to become a “Guarantor” under the
\nSubsidiary Guaranty in order to induce the Lender Parties to continue to extend
\nCredit Extensions under the Credit Agreement;<\/p>\n

NOW, THEREFORE, in consideration of the premises, and for other consideration
\n(the receipt and sufficiency of which is hereby acknowledged), each of the
\nundersigned agrees, for the benefit of each Lender Party, as follows.<\/p>\n

SECTION 1. Party to Subsidiary Guaranty, etc<\/u>. In accordance with the
\nterms of the Subsidiary Guaranty, by its signature below, each of the
\nundersigned hereby irrevocably agrees to become a Guarantor under the Subsidiary
\nGuaranty with the same force and effect as if it were an original signatory
\nthereto and each of the undersigned hereby (a) agrees to be bound by and comply
\nwith all of the terms and provisions of the Subsidiary Guaranty applicable to it
\nas a Guarantor and (b) represents and warrants that the representations and
\nwarranties made by it as a Guarantor thereunder are true and correct as of the
\ndate hereof. In furtherance of the foregoing, each reference to a “Guarantor”
\nand\/or “Guarantors” in the Subsidiary Guaranty shall be deemed to include each
\nof the undersigned.<\/p>\n

SECTION 2. Representations<\/u>. Each of the undersigned hereby represents
\nand warrants that this Supplement has been duly authorized, executed and
\ndelivered by it and that this Supplement and the Subsidiary Guaranty constitute
\nthe legal, valid and binding obligation of each of the undersigned, enforceable
\nagainst it in accordance with its terms.<\/p>\n

SECTION 3. Full Force of Subsidiary Guaranty<\/u>. Except as expressly
\nsupplemented hereby, the Subsidiary Guaranty shall remain in full force and
\neffect in accordance with its terms.<\/p>\n

SECTION 4. Severability<\/u>. If any provision of this Supplement or the
\nother Loan Documents is held to be illegal, invalid or unenforceable, (a) the
\nlegality, validity and enforceability of the remaining provisions of this
\nSupplement and the other Loan Documents shall not be affected or impaired
\nthereby and (b) the parties shall endeavor in good faith negotiations to replace
\nthe illegal, invalid or unenforceable provisions with valid provisions the<\/p>\n

\n

economic effect of which comes as close as possible to that of the illegal,
\ninvalid or unenforceable provisions. The invalidity of a provision in a
\nparticular jurisdiction shall not invalidate or render unenforceable such
\nprovision in any other jurisdiction.<\/p>\n

SECTION 5. Indemnity; Fees and Expenses, etc<\/u>. Without limiting the
\nprovisions of any other Loan Document, each of the undersigned agrees to
\nreimburse the Administrative Agent for its reasonable out-of-pocket expenses
\nincurred in connection with this Supplement, including reasonable attorney153s
\nfees and expenses of the Administrative Agent153s counsel.<\/p>\n

SECTION 6. Governing Law, Entire Agreement, etc<\/u>. THIS
\nSUPPLEMENT WILL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE
\nINTERNAL LAWS OF THE STATE OF NEW YORK. <\/strong><\/p>\n

SECTION 7. Counterparts<\/u>. This Supplement may be executed by the
\nparties hereto in several counterparts, each of which shall be deemed to be an
\noriginal and all of which shall constitute together but one and the same
\nagreement. Delivery of an executed counterpart of a signature page to this
\nSupplement by facsimile or via other electronic means shall be effective as
\ndelivery of a manually executed counterpart of this Supplement.<\/p>\n

SECTION 8. ENTIRE AGREEMENT<\/u>. THIS SUPPLEMENT AND THE OTHER LOAN
\nDOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE
\nCONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
\nAGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
\nPARTIES.<\/p>\n

\n

IN WITNESS WHEREOF, each of the undersigned has caused this Supplement to be
\nduly executed and delivered by its Responsible Officer as of the date first
\nabove written.<\/p>\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

[NAME OF ADDITIONAL LOAN PARTY]<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Title:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

ACCEPTED AND AGREED FOR ITSELF<\/p>\n

AND ON BEHALF OF THE LENDER PARTIES:<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n
\n

BANK OF AMERICA, N.A.,<\/p>\n

as Administrative Agent<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Title:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table><\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9057],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9560,9565],"class_list":["post-41339","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-tibco-software-inc","corporate_contracts_industries-technology__programming","corporate_contracts_types-finance","corporate_contracts_types-finance__guaranty"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41339","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41339"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41339"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41339"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41339"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}